Citation Nr: 0323273
Decision Date: 09/10/03 Archive Date: 01/21/04
BOARD OF VETERANS' APPEALS
DEPARTMENT OF VETERANS AFFAIRS
WASHINGTON, DC 20420
DOCKET NO. 96-11 259 ) DATE NOV 06, 2003
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New York, New York
ORDER
The following correction is made in a decision issued by the Board in this case on September 10. 2003:
On page 3, paragraph 2, line 7, “200” is corrected to read “2001”.
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals
Citation Nr: 0323273
Decision Date: 09/10/03 Archive Date: 09/23/03
DOCKET NO. 96-11 259 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in New York, New York
THE ISSUE
Entitlement to a disability rating in excess of 60 percent
for a stomach disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. L. Konya, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1964 to May 1966.
This case comes to the Board of Veterans' Appeals (Board) on
appeal from a November 1993 decision by the RO in New York,
New York, which confirmed and continued a 60 percent rating
for service-connected stomach disorder.
FINDINGS OF FACT
1. All development has been accomplished and all relevant
evidence necessary for an equitable disposition of the appeal
has been obtained.
2. A stomach disorder is manifested by nausea, diarrhea,
epigastric pain, hypoglycemic symptoms and periodic vomiting.
CONCLUSION OF LAW
The schedular criteria for an evaluation in excess of 60
percent for a stomach disorder have not been met. 38
U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.3,
4.6, 4.114, Diagnostic Codes 7306, 7308 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VCAA
The Board notes that during the pendency of this appeal, the
Veterans Claims Assistance Act of 2000 (VCAA) was signed into
law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107
(West Supp. 2002). This liberalizing law is applicable to
this appeal. The VA promulgated regulations to implement the
provisions of the law. See 38 C.F.R. §§ 3.102, 3.156(a),
3.159, 3.326(a) (2002). The VCAA and implementing
regulations essentially provide that VA will assist a
claimant in obtaining evidence necessary to substantiate a
claim but is not required to provide assistance to a claimant
if there is no reasonable possibility that such assistance
would aid in substantiating the claim. It also includes new
notification provisions.
The veteran has undergone VA examinations, and he has been
notified of evidence required to substantiate the claim. The
Board concludes that discussions as contained in the November
1993, February 1995, September 1995 and September 1996 rating
decisions, in the statement of the case issued in February
1996, the supplemental statement of the case issued in
February 1998, and in the May 1998 and March 2003
supplemental statements of the case as well as a VA letter to
the veteran dated in May 200, have provided the veteran with
sufficient information regarding the applicable regulations.
The veteran and his representative have submitted written
arguments and testimony. The rating decisions, statement of
the case and supplemental statements of the case provided
notice to the veteran of what was revealed by the evidence of
record. Additionally, these documents notified him why this
evidence was insufficient to award the benefit sought. Thus,
the veteran has been provided notice of what VA was doing to
develop the claim, notice of what he could do to help his
claim, and notice of how his claim was still deficient.
Because no additional evidence has been identified by the
veteran as being available but absent from the record, the
Board finds that any failure on the part of VA to further
notify the veteran what evidence would be secured by VA and
what evidence would be secured by the veteran is harmless.
Cf. Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Factual Background
In January 1970, the RO granted the veteran entitlement to
service connection for a stomach disorder and assigned a 100
percent rating effective August 11, 1969. In the same rating
decision, the RO assigned a 60 percent rating for the stomach
disorder, effective November 1, 1969. The 60 percent rating
has remained in effect until the instant appeal.
In April 1993, the veteran filed for an increased rating for
a stomach disorder.
In support of his claim, the veteran submitted a January 1993
statement from H. Adler, M.D. containing the diagnosis of
bile gastritis.
During a VA examination in July 1993, the veteran complained
of periodic vomiting and constant right upper quadrant pain.
The pertinent diagnosis was chronic peptic ulcer.
In a statement received from N. Carnevale, M.D., dated March
1994, he reported that he saw the veteran for an office visit
in March 1994. An abdominal examination was unremarkable and
the veteran was fit and in good spirits.
In June 1994, Dr. Adler submitted a statement, which
indicated that since 1992 the veteran had complained of
nausea and intermittent vomiting. Throughout the years he
required a rigid diet as a result of his post gastrectomy
symptoms.
In March 1995, the veteran submitted a statement and reported
that his overall health had decreased. He experienced many
years of discomfort, vomiting and ill health.
In an October 1995 statement from the veteran, he indicated
that in 1971 he underwent surgery for esophageal reflux. As
a result of the surgery, he had to sleep at a 45-degree angle
so he would not choke on his own fluids.
During a personal hearing in April 1996, the veteran
testified that he suffered from dizziness, nausea and
vomiting. He was a funeral parlor embalmer for 29 years but
had to take an early retirement because the chemicals used to
embalm the bodies irritated his stomach and caused dizziness.
Doctors told him he suffered from hypoglycemia and had gained
approximately 6 to 8 pounds.
During a VA examination in July 1996, the veteran complained
of daily vomiting and tenderness in this abdomen. He
reported a weight gain of 5 pounds over the past year.
Physical examination revealed no anemia. There was right
upper quadrant pain. The diagnoses were status post vagotomy
and subtotal gastrectomy in 1966, status post jejunostomy in
1971, status post cholescystectomy and repair of ventral
hernia in 1988 and history suggestive of right upper quadrant
hernia. An addendum noted that the ventral hernia repaired
in 1988 was a direct result of previous abdominal surgeries.
In December 1997 the veteran was seen by Michael S. Frank,
M.D., for a gastroenterological evaluation. The physician
reported that the veteran gained a total of 12 pounds over
the past 4 years. An abdominal examination was unremarkable.
A gastroscopy revealed a traumatic bezoar, which encompassed
most of the gastric pouch, but on follow-up examination, the
gastric pouch was free of the previously identified bezoar.
VA outpatient treatment notes dated August 1998 to October
2001 reflect treatment for a variety of complaints. In a
treatment note dated May 1999, the veteran related that his
past medical history included peptic ulcer disease and a
gastrectomy. He reported diarrhea and vomiting as part of
his daily life. No diagnosis was noted. In March 2001, the
veteran was noted to weigh 200 pounds.
Clinical laboratory reports from Quest Diagnostics, dated
February 2002, revealed a diagnosis of gastric mucosa with
intestinal metaplasia and inactive, chronic, mild gastritis.
At a VA examination in May 2002, the veteran's weight was
stable at 208 pounds. He reported daily vomiting, nausea and
constant epigastric pain. Approximately every two weeks, he
felt weak and dizzy after eating, but the symptoms were
relieved after eating sugar. Physical examination of the
abdomen revealed a midline laparotomy scar and epigastric
ventral hernia. There were no masses, no organomegaly and no
tenderness. The pertinent diagnoses were status post
vagotomy and subtotal gastrectomy in 1965, status post
jejunostomy in 1971, bile gastritis, status post treatment
for H. Pylori in 2002, post gastrectomy dumping syndrome,
status post cholecystectomy and ventral hernia.
During a VA examination for digestive conditions in May 2002,
the examiner noted reducible epigastric ventral hernia. The
diagnosis was ventral hernia.
Analysis
The veteran contends that his service-connected stomach
disorder is more disabling than currently evaluated.
When rating the veteran's service-connected disability, the
entire medical history must be borne in mind. Schafrath v.
Derwinski, 1 Vet. App. 589 (1991). However, the present
level of disability is of primary concern in a claim for an
increased rating; the more recent evidence is generally the
most relevant in such a claim, as it provides the most
accurate picture of the current severity of the disability.
Francisco v. Brown, 7 Vet. App. 55 (1994).
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A § 1155 (West 2002); 38 C.F.R.
Part 4 (2002). Separate diagnostic codes identify the
various disabilities.
A review of the evidence indicates that the veteran's stomach
disorder is appropriately evaluated under Diagnostic Code
7308, as 60 percent disabling. The 60 percent rating
assigned to the veteran's stomach disorder is the maximum
level of compensation permitted under Diagnostic Code 7308.
A March 1994 statement from Dr. Carnevale noted that an
abdominal examination of the veteran was unremarkable. At a
VA examination in July 1996, the veteran reported daily
vomiting and tenderness in his abdomen. He reported a gain
of approximately 5 pounds over the past year. A private
statement from Dr. Frank dated in December 1997 revealed a
total of 12 pounds gained in the past 4 years and an
abdominal examination was unremarkable. Clinical laboratory
reports dated February 2002 showed gastric mucosa with
intestinal metaplasia and inactive, chronic, mild gastritis.
A May 2002 VA examination showed that his weight was stable
and his abdomen revealed no masses or tenderness. At a VA
examination for digestive conditions in May 2002 the veteran
was diagnosed with a ventral hernia.
Consideration was also given to Diagnostic Code 7306, Ulcer,
marginal (gastrojejunal) because this code shares some
criteria with Diagnostic Code 7308 and it avails a possible
100 percent evaluation where the disability is pronounced;
with periodic or continuous pain unrelieved by standard ulcer
therapy with periodic vomiting, recurring melena or
hematemesis, and weight loss resulting in total
incapacitation. A 60 percent rating is merited where the
impairment is severe; with the same symptoms as pronounced
only less pronounced and less continuous, causing symptoms
with definite impairment of health. 38 C.F.R. § 4.114,
Diagnostic Code 7306. However, a thorough review of VA
examinations and private doctor statements indicates that the
veteran does not meet the criteria under Diagnostic Code
7306. With regard to 7306, although the veteran did have
periodic vomiting, he had no history of recurring melena,
hematesis, or weight loss. See Butts v. Brown, 5 Vet.
App. 532, 539 (1993) (holding that the Board's choice of
diagnostic code should be upheld so long as it is supported
by explanation and evidence).
Consequently, the veteran's claim for a rating in excess of
60 percent for a stomach disorder is denied.
The Board also finds that the veteran's stomach disorder is
not so unusual or exceptional as to render impractical the
application of the regular schedular standards. 38 C.F.R.
§ 3.321(b)(1). In this regard, the Board notes that a
stomach disorder has not necessitated frequent periods of
hospitalization or resulted in marked interference with his
employment.
After reviewing the medical evidence of record, in concert
with the veteran's statements, the Board finds that the
preponderance of the evidence is against a rating in excess
of 60 percent for a stomach disorder. Consequently, the
benefit-of-the-doubt rule does not apply, and the claim must
be denied. 38 U.S.C.A. § 5107(b) (West Supp. 2002); Gilbert
v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
Entitlement to a disability rating in excess of 60 percent
for a stomach disorder is denied.
____________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.